Jones v Persal & Company[1999] QDC 189

[Before McGill DCJ]

[Jones v. Persal & Co]

(Brisbane No 1442 of 1999)

BETWEEN:

AND

JUDGMENT

BETWEEN:

AND

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 23rd day of July 1999

On 22 August 1996 while the plaintiff was at work at the defendant's premises he climbed a bull bar at the front of a truck to assist two other employees of the defendant who were fitting a cherry picker boom assembly to the truck. He slipped and fell on to the floor of the workshop, landing on his wrists and suffering injury. The plaintiff claims damages in respect of the injuries and their consequences, relying on negligence, breach of contraband breach of statutory duty, specifically that imposed by s.28 of the Workplace Health and Safety Act 1995 (“the 1995 Act”). Liability and quantum are both in issue.

Liability: Circumstances of Accident

The plaintiff was employed as a fitter and turner and had been working for the defendant for about two years. The defendant operated an engineering works in a series of connected buildings in one of which there were three bays where work could be done on motor vehicles: p.160. Also in this building was an office, and the truck in question was in the bay closest to the office, with the cab of the truck facing towards the office door, although the door was in a wall parallel to the direction of the truck. The other two work bays were parallel to this bay and further away from the office, and were used normally for relatively minor work: p.160. Unfortunately I do not have the benefit of a diagram of the shed; various witnesses gave evidence about where things were by reference to a diagram in Exhibit 1, but by reference to things which were off the page and sometimes the evidence was a little difficult to follow, or expressed in vague terms.

The defendant was apparently reconditioning a number of trucks and fitting hydraulic booms and buckets to them so as to convert them into what are commonly known as cherry pickers: p. 119. The plaintiff had done this work previously with a different truck, photographs of which appear in the back of Exhibit 1: p.13. The particular task being performed at the time of the accident was the process of attaching the boom to the turret housing mounted on the back of the truck: p.120. The boom pivots about a pin^[1] which passes through flanges on each side of the turret (Ex 21), and through a pipe welded into the end of the boom, and fitted with bushes so as to allow a fairly close fit: pp.14,121,139. It was necessary to position the boom in the housing with some precision so as to be able to insert the pin first through the flange on one side of the turret, then through the bushes in the boom, and then through the flange in the other side of the turret. Once inserted the boom would be supported at this end by, and pivot around, the pin. It was machined to a fairly fine tolerance,^[2] so it would have been a tricky task to get everything lined up properly so as to be able to insert the pin: p.139. While this was being done, the boom was being supported by a mobile crane, of the kind shown in Exhibit 19. The crane was positioned at right angles to the truck on the right side from the point of view of the driver of the truck and was driven by a Mr. Westbrook, another employee of the defendant. Apart from Mr. Westbrook, a fitter, Mr. Probyn, was performing this task without assistance.

The plaintiff said that when he had fitted the boom to the truck that he had reconditioned he had the assistance of another employee - he thinks Mr. Probyn - who manoeuvered the boom at the other end while it was suspended so as to assist him to position it in just the right place to enable the pinto be slid in: p.14. The plaintiff said that it was desirable to avoid forcing the pin in, for example by hammering it, because that would damage the surface of the pin and the bush, which could subsequently interfere with the proper movement of the bush around the pin when the boom was being raised or lowered: p.15: p.96. That evidence was not challenged in cross-examination, and not directly contradicted, although Mr. Probyn did say that when he was inserting the pin he would hit it with a piece of timber in order to get it into the hole (p.142), which must therefore not have been precisely aligned.

The plaintiff at the time was working on part of a hydraulic ram which, I suspect, was to be used on this or a similar truck: p.72. He had been to the office nearby for some purpose, and on leaving the office saw what was being done: p.12. His evidence was that Mr. Probyn was attempting to get the boom into the right position so that he could insert the pin (p.13); Mr. Probyn's evidence, supported in this respect by a Mr. Westbrook (p.144), was that at the stage when the plaintiff appeared on the scene the pin was already through the flange on the one side of the housing and through the bushes on the boom, and it was a matter of manoeuvring the boom into the right position to get the pin into the hole in the other flange: p.121. Mr. Probyn was attempting to do that using pieces of wood and a pinch bar to manoeuvre the boom (p.121), but also by getting Mr. Westbrook to make small adjustments to the position of the crane arm which would alter the position of the boom: p. 122. Mr. Westbrook said that the crane was fitted with a telescopic arm, and the boom was suspended from the end of this, and he could move the end of that in or out slightly, that is, towards or away from where he was sitting at the crane controls, and that had the effect of moving the boom to the left or the right relative to the truck.: p.155.

When the plaintiff saw what was going on he thought that the task would be assisted if he could stabilise and manoeuvre the end of the boom which was over the cabin of the truck, and in this way assist Mr. Probyn in lining up the boom properly: p.16. Since some fairly fine adjustments had to be made for this to be done with the sort of precision necessary to accommodate the tolerances involved, as mentioned earlier, I think that it is obvious that in principle this was a sensible thing to do. The difficulty was in getting into a position where the plaintiff could do that.

The plaintiff said that he called out to Mr. Probyn and asked whether he wanted a hand, and Mr. Probyn indicated by some brief words (p.12), and nodding his head (p.16), that he did. Mr. Westbrook in his evidence said that it appeared that the plaintiff had said something and that Mr. Probyn had seen him, although he did not hear anything, being inside the enclosed cabin of a noisy crane: p.150. Mr. Probyn said that he heard something called out (presumably from the plaintiff), but could not recall what was said: p.122. He denied that he had accepted an offer of help from the plaintiff, or encouraged the plaintiff to become involved: p.122,123. He said that he just kept working, and the next thing he recalled was Mr. Westbrook turning off the crane and going to the assistance of the plaintiff after he had fallen: p.123. Mr. Probyn got off the truck and went round to the front where he discovered that it was the plaintiff who was on the ground injured.

The plaintiff said that before he climbed on the bull bar he held up his hand to Mr. Probyn to wait until he assisted him, and looked around for a mobile work platform which he could stand on near the front of the truck: p.16. The work platform was a little distance away, and there were a number of leads in the way. The plaintiff said he did not like moving the work platform over leads, and had previously got into trouble with his employers for clearing leads out of the way before moving equipment mounted on solid rubber tyres (p.18 - this was denied: p. 163), and for that reason he rejected the idea of using the work platform, and climbed on to the bull bar: Ex. 20, p.48. The bull bar which appears in the photographs has round pipes as its horizontal members. The plaintiff said the bull bar from which he fell was similar but different, particularly in having the top pipe lower than that shown in the photographs. The plaintiff was wearing work boots, and said he intended to stand with the top rung in the heel notch, bracing his knees against the windscreen: p.84. When he climbed up, however, his left foot slipped and he began to fall, and he flung himself to the right to avoid some items on a pallet near the front of the truck, and landed on his hands, forcing his right elbow into his ribs and bending back his left wrist: p.49.

Obviously what the plaintiff was trying to do was to get himself into a position where he could manoeuvre the end of the boom which was protruding over the cab of the truck. Immediately behind the cab there was a metal cradle, positioned so that once the boom had been installed, it would rest on that cradle when fully lowered, and the truck was being used as a vehicle. According to Mr. Probyn, at the time of the accident the boom had been lowered to a point where it was resting on this cradle (p.121, 124), so that its weight was being supported partly on the cradle, partly by the crane and the slings (or perhaps only the sling at the end closer to Mr. Probyn) and partly by the wood and other things being used by Mr. Probyn to adjust the end of the boom at the housing: p. 142. He said that he was getting Mr. Westbrook to move the crane only slightly. Mr. Westbrook on the other hand said that the boom, although suspended within the sides of the cradle, was not resting on it but was suspended just above it: p.147. In this position he was making adjustments to the precise alignment of the boom within the limits afforded by the cradle by making small adjustments to the position of the end of the arm of the crane. That would involve moving it in and out, rather than up and down.

If the boom were resting on the cradle, it would not have been possible for the plaintiff to do anything useful from in front of the cab of the truck. Obviously the boom is quite heavy and would be difficult to move at all unless it was effectively suspended from the crane. If, however, it was in the position described by Mr. Westbrook, it seems to me obvious enough that the sort of fine movement required could have been more easily achieved by moving the end of the boom near the cab of the truck slightly by hand, rather than trying to make very small adjustments of the crane, bearing in mind that the movements were of a few centimetres at most, since that was all that was permitted by the width of the cradle: p. 156. If the pin was already three quarters of the way through, and it was simply a matter of lining it up properly at the other end, getting it to the precise vertical alignment should not have required much adjustment at that point. Getting the right horizontal alignment would have involved moving the far end of the boom to the left or the right so as to turn the other end of the boom around the pin until it lined up with the hole. Once that was achieved, it should have been a fairly easy task to slide it in, although the ease of the task would depend on the precision with which it was aligned. The necessary fine horizontal alignment would have been more easy to achieve by someone manually moving the far end of the boom than by someone trying to make very small adjustments using a crane, and moving the crane could well have interfered with the vertical alignment at the same time.

Mr. Probyn said that the boom was sitting in its cradle at the time of the accident (p.121) and indeed that there was weight resting on the cradle at the front: p.140. This point came up several times in the course of his evidence (see, for example, pp.124, 134), and it seems clear that according to him the boom was resting firmly in the cradle at the time when the accident happened. That is inconsistent with the evidence of both Mr. Westbrook and the plaintiff, and indeed it would have been impossible for the plaintiff to make any contribution to the job in the way he intended by trying to manipulate the boom while it was in the cradle. For that matter, it would have been more difficult to do so even with the crane. Apart from this, if the boom was pivoting around that point at which it was resting on the cradle, it would have been possible to insert the pin only if the centre of the pipe happened to line up with the centre of the holes in the flanges, since the pipe could only move through an are centred on the cradle. In these circumstances, I am not prepared to accept Mr. Probyn's evidence as to how he was doing this job.

As a result, I am wary about accepting the rest of his evidence. I suspect he is trying to distance himself from the plaintiff's injuries, and for that reason denying that he gave any encouragement to the plaintiff to become involved. He does agree that he heard somebody call out something, and that supports the plaintiff's account of having called out to offer assistance which also has some support from Mr. Westbrook. It is, I suppose, possible that the plaintiff simply offered assistance and leapt into action without waiting for any response, but there is no evidence in support of that version and on the whole I am prepared to accept the plaintiff's evidence that he did offer assistance and received some indication of encouragement from Mr. Probyn before climbing on to the bull bar.

It does not necessarily follow however that Mr. Probyn was in any sense encouraging the plaintiff to climb on the bull bar. It would, I think, have been safer for the plaintiff to have climbed on to the back of the truck behind the cabin from which position he could still have made some fine adjustments to the position of the boom fairly easily (see Ex. 20), although not as easily as from the other side of the cab, where he would be further away from the pin and therefore able to exert additional leverage.

There is no suggestion that anything Mr. Probyn or Mr. Westbrook did caused the plaintiff to slip. He slipped because he had climbed into a dangerous place. The plaintiff said in effect that he considered using a work platform but refrained from doing so because it would have meant moving the platform over some leads. Mr. Probyn was quite clear that there were no leads around the truck: p.124. In this he was supported by Mr. Westbrook: p.154. I am prepared to accept this part of the evidence, and think that the plaintiff did not go and get the work platform because it would have taken too much time. If the plaintiff were going to help, he had to help straight away otherwise it could be quicker to leave them to do the job the way they were doing it^[3]. I am not prepared to accept the plaintiff's evidence that he considered using the work platform and was deterred from doing so because of leads on the floor and prior experiences at his work place.

I do not think there was any negligence on the part of Mr. Probyn or Mr. Westbrook which caused the plaintiff either to climb on to the bull bar or to fall. Nor did the plaintiff climb on the bull bar as part of any system of work organised by the employer. The plaintiff was not required to climb up there, nor had the employer consented or even acquiesced in his doing so. The bull bar was not unsafe as a bull bar, but it was not for climbing on. I do not think that this should be seen as the sort of situation where one employee will routinely help out another employee in a particular task, so that an employer should expect that from time to time assistance will be provided in performing a particular task. Although this was not the first truck converted to a cherry picker by the defendant, it was by no means a routine process where the defendant might have expected assistance to be given from time to time, and that makes it harder to conclude that it should take it into account when formulating a system of work. The plaintiff was trying to be helpful, but that I think is not in itself sufficient to make the defendant responsible for the plaintiff's injuries.

For the reasons given earlier, in my opinion manual manipulation of the boom was the logical procedure to follow as a means of providing assistance in getting the job done effectively. Because the job was being done without that, it could be characterised as a process which invited assistance. I accept the plaintiff's evidence about this: pp.78, 81. I think on the whole that it was foreseeable that someone might offer assistance in the process of getting the boom properly aligned to enable the pin to be inserted, in circumstances where that process was being done as it was being done here. But that assistance was necessarily not part of the system of work, and there was therefore a risk that a person providing that assistance would not fit in with the system of work and would suffer injury as a result. I do not think it is necessary to go so far as to foresee the possibility that a person such as the plaintiff might attempt to offer assistance by climbing on the bull bar and thus expose himself to the risk of injury through falling off. I think it is enough to say that there was a risk of injury of some kind to any other employee who offered assistance.

Was There A Duty to the Plaintiff?

The question of the liability of an employer for an injury received by an employee who is doing something other than what he is supposed to be doing has been sometimes seen as raising an issue as to whether the employee was acting within the scope of his employment. Liability can arise because of something which happens while an employee is engaged in something incidental to the employment, such as having a cup of tea in a break: Davidson v. Handley Page Ltd [1945] 1 All ER 235 where it was said that the common law duty operates when the employee is doing something ordinarily and reasonably incidental to his day's work. Indeed, the employee does not go outside the course of employment so as to exclude liability for injuries suffered merely because he is doing something he is instructed by his employer not to do, or even prohibited by law from doing: National Coal Board v. England [1954] AC 403^[4]; Rands v. McNeil [1955] 1 QB 253 at 259; Laszczyk v. National Coal Board [1954] 1 WLR 1426^[5]. In all of these matters the fact that the plaintiff was not supposed to be doing what he was doing when he was injured was regarded as going merely to contributory negligence.

There is at least one English decision where an employee who went to assist a fellow employee doing a different job failed: Bloor v. Liverpool Derricking and Carrying Co Ltd [1936] 3 All ER 399. The basis of this decision however was that the employee was volenti in relation to the risks associated with the other job, so that no duty was owed to him. This decision is said in Munkman “Employers Liability” (10th ed., 1985) at p.101 to be inconsistent with the decisions I have referred to earlier, and it seems to me inconsistent with the modern approach to the defence of volenti which in any case is not relied on in the amended Entry of Appearance and Defence.

It may be that an employer could so instruct a particular employee that if he entered a particular part of the employer's premises he would be doing so as a trespasser, and there are cases saying that in such a situation there would be no duty owed to the employee at common law. This was the view of the Court of Appeal in Westwood v. Post Office [1973] QB 591, and the point was left open on appeal in the House of Lords [1974] AC 1, where the decision establishes the proposition that a statutory duty to an employee applies even in circumstances such as those. That the duty could apply at common law in Australia is, I think, shown by the approach adopted by the High Court in Hackshaw v. Shaw (1984) 155 CLR 614, that there is not necessarily no duty owed to a trespasser.

There was no basis in the present case for concluding that the plaintiff was breaching any instruction or prohibition in offering assistance, so in view of these authorities it follows that he is within the scope of the general duty of care owed by an employer. The particular circumstances however are relevant to the question of whether that duty was breached. The duty of the employer to the employee is to take reasonable care to avoid subjecting employees to unnecessary risks of injury: McLean's Roylen Cruises Pty. Ltd v. McEwan (1984) 58 ALJR 423 at 425. That duty is not confined to those employees who are directly engaged in performing a particular operation. For example, if the performance of a particular operation may pose hazards to the employees in the vicinity, it would not be sufficient to take precautions to protect those employees in the vicinity who are engaged in the operation. It would be necessary also to consider the safety of other employees who were required to be in the vicinity, or indeed who may come into the vicinity. In Munkman (supra), the opinion is expressed that an employer could be liable even to an employee who was engaged in skylarking in part of the premises where he was not supposed to be if he was injured as a result of some dangerous defect in the premises which the employer should have made safe.

In Glass, McHugh and Douglas “Liability of Employers” (2^nd ed, 1979), the opinion is expressed at p.10 that if the employee is injured while on an employer's premises then there is evidence capable of satisfying the test for the existence of a duty of care from the employer to the employee. At p. 11 the authors cited with approval the unreported decision of Fell v. Commissioner for Railways (NSW Supreme Court, Collins J, 19.8.63) where a plaintiff who was a lorry driver, while waiting for another load, was standing near an air compressor concerning which he had no duties. Nevertheless, when it began to speed up inappropriately, he tried to take action with a view to bringing it under control in the course of which he was injured by an unguarded fan blade. The question of whether the employer could reasonably have foreseen in a general way injury being caused to the class of employees which included the plaintiff, and whether there was a breach of duty, were left to the jury by the trial judge. The text does not mention the view taken of the matter by the jury.

With regard to breach of statutory duty, the authors refer at p.119 to Bourke v. Butterfield and Lewis Ltd (1926) 38 CLR 354 at 373 where Isaacs J said:

The authors continue:

They go onto conclude that the scope of breach of statutory duty is the same as the scope of the duty of common law and continue:

referring to Caledonian Collieries Ltd v. Spiers (1957) 97 CLR 202 at 221. In view of the decision of the Court of Appeal in Hardy v. St. Vincents Hospital Toowoomba Ltd (1999) QLR 27 February, it may be that the scope of statutory duty in Queensland is even wider. The authors refer by way of an example to the decision in Uddin v. Associated Portland Cement Manufacturers Ltd [1965] 2 QB 582, where the duty was held to extend to an employee doing for his own benefit something he was not authorised to do at a place he should not have been, but the facts in that case are not, I think, very similar to those in the present.

There is also authority for the proposition that an employer can be liable for injuries suffered by a person who is not an employee, but who voluntarily assists employees in the performance of their function: Munkman, p.632; and see Fitzgerald v. Great Northern Railway [1947] NIR 1 where there is a thorough discussion of the cases considering the difficulties a volunteer faced prior to the abolition of the doctrine of common employment. In that case, the plaintiff recovered because the defendant had an unsafe system of work which put him in danger.

In this case, in my opinion, the defendant owed the ordinary duties to the plaintiff. The plaintiff was also within the scope of the statutory obligation on the defendant to ensure his safety. The fact that the plaintiff was not supposed to be helping in this task is relevant to the question of whether the duties were breached, and to the question of contributory negligence. There can, I think, be no question of liability on the basis of a failure to give instructions as to how the job ought to be done, or to warn against dangers such as the danger involved in climbing on a bull bar.

In my opinion, when work is being done in a way which invites assistance, and it is foreseeable that assistance could be provided in a way which would expose the person assisting to risk of injury, there is a duty to take reasonable care to minimise or remove that risk. That may involve not doing the work in that way if the work can be carried out as effectively in some other way which will not invite assistance. That was the situation here; not only could the work have been done differently by providing assistance in manoeuvring the other end of the boom manually, but, if doing it in that way would have made it unnecessary to force the pin into position by hammering it with a piece of wood, I think it probably would have been done in a better fashion.

I think that in order to appreciate what went wrong in the present case, it is necessary to stand back from the details as to how the operation was being performed, and look at the overall organisation of the work. The problem here was that the work was not being done properly, so that an employee who appreciated that and was trying to be helpful by providing the sort of assistance that was required and came to be injured because, out of an excess of enthusiasm and without sufficiently considering the consequences, he took a foolish risk. The possibility that employees may take risks in order to carry out their work must be allowed for: McLean v. Tedman (1984) 155 CLR 306. I therefore find that there was a breach of the defendant's duty.

It follows in my opinion that the defendant was negligent and the plaintiff is entitled to recover on that basis. It follows that the defendant is also liable for breach of the implied term in the contract of employment, to take reasonable care to avoid exposing the plaintiff to unnecessary risks. The defendant also failed to ensure the plaintiff's safety at work. The plaintiff was injured while at work as a result of the way in which the work was being carried on, and would not have been injured if it had been carried on differently: Mount Isa Mines Ltd v. Peachey (Appeal 3077/98, Court of Appeal, 9.11.98). The defendant has not shown that it was impracticable to do so; it could have been done by organising the work Mr. Probyn was doing differently so as not to invite assistance. This would not have been impracticable; indeed it would seem to have been a better way of organising that work. As mentioned earlier, in this context it does not matter that the plaintiff was not supposed to be doing this particular task at the time; it is sufficient that he was “at work”. It would not matter if this kind of injury was not reasonably foreseeable (Hardy v. St. Vincent's Hospital Toowoomba Ltd (supra), although I think that, in a general, way, it was. It is unnecessary for me to consider whether under the 1995 Act, the plaintiff has to show that he would not have been injured if the work had been done differently: Schiliro v. Peppercorn Child Care Centres (Brabazon DCJ, 18.9.98, unreported).

Contributory Negligence - Liability in Contract

This matter was tried before me on 2 March 1999 while I was on circuit in Maryborough and I reserved my decision. Two days later the High Court delivered its judgment in Astley v. Austrust Ltd (1999) 73 ALJR 403, and in Wylie v. The ANI Corporation Ltd (Plaint 2999/96 heard on 22 and 23 March 1999) in a judgment delivered on 9 April 1999 I held that the effect of the decision of the High Court was that where a defendant was liable for breach of an implied term in a contract of employment the plaintiff was entitled to recover damages for breach of contract without reduction on the basis of contributory negligence. On 14 April 1999 the plaintiff's solicitors filed a summons seeking a relisting of the matter for the purpose of making further submissions, which summons came before me by arrangement in Brisbane on 16 April 1999. The plaintiff on this occasion simply relied on my earlier decision, and noted that the plaint filed in October 1997 had always claimed damages for breach of contract, and had pleaded that the matters alleged to be a breach of duty on the part of the defendant were also a breach of implied terms in the contract of employment.

Consistent with the practice prior to Astley, no particular reference had been made to these matters in the course of the trial, but the matters had been raised in the pleadings and an amended Entry of Appearance and Defence filed on 1 March 1999 had admitted that the plaintiff was employed by the defendant, although the existence of the various implied terms alleged in para. 2 of the plaint was not admitted: para. 4. It was submitted on behalf of the defendant that these implied terms had not been made out because there was no evidence to show that they were not inconsistent with express terms in the contract of employment. I think it is sufficient for present purposes to say that if that proposition were to be advanced I think it ought to be more pleaded in the defence; it was not pleaded, nor was any application made to amend the defence so as to raise such a pleading. Subject to considerations of industrial law, I think it is correct to say that the obligation to take reasonable care which would ordinarily be implied in a contract would be subject to any express terms of the contract, but in the absence of evidence that there were relevant express terms, I think it is reasonable for me to find on the balance of probabilities that the terms which would ordinarily be implied by law into a contract of employment were implied into the contract of employment in the present case. I do not think it is necessary for a plaintiff to prove the express terms of the contract of employment in order to show that there was no express inconsistent term. In other respects I adopt my reasoning in Wylie concerning the availability of an action for damages for breach of contract.

The defendant sought leave to make other amendments to the defence, however, in terms of Exhibit 24. This alleged an implied term in the contract of employment that the plaintiff would carry out his duties with due care and skill, in such a fashion as not to cause injury to any person including himself, and/or in such a fashion as to take reasonable care for his own safety. It was alleged that there was a breach of those duties, and that by reason of those breaches the defendant suffered loss and damage in such amount of the plaintiff's damages as the court finds was caused by the plaintiff's breaches, and the defendant sought to set off the amount of those damages. The matter was pleaded in this way in an attempt to reinstate a reduction of the damages for “contributory negligence” on the basis of existence of implied term to take reasonable care to avoid injury to the plaintiff, with the amount of the damages being assessed at the amount by which the plaintiff's damages would be reduced if the contribution statute applied.

Apportionment of Damages

Counsel's argument in support of this apportionment was ingenious, but it seems to me, with respect, that its only virtue was that, if it were correct, it would reinstate the position thought to be the law in Australia prior to the decision in Astley. The argument did not seek to rely on anything specific about this contract of employment, and if it were correct, would appear to apply in any case where there was a contract of employment, and indeed perhaps in any case where there was a contract, so that it would always be an answer to the decision in Astley. That, I think, in itself tells against it. It is also difficult to see how the element of apportionment of damage can arise on the basis of causation. Either the plaintiff's breach of contract was a cause in the legal sense of the defendant's loss, in incurring a liability in damages to the plaintiff, in which case the loss caused by the breach is the whole amount of those damages, or it was not. In my opinion, there is no basis in the existing law for apportionment of damages on the basis that the relevant injury (here a breach of contract) was not the sole cause of the plaintiff's loss.

There are cases where damages have been apportioned on the basis of causation, but that has been where the effect of the defendant's breach has been to make the plaintiff worse off than he otherwise would have been: see Tait & Lyle Industries Ltd v. Greater London Council [1983] 2 AC 509, where in an action for nuisance it was held that the plaintiff had incurred additional dredging costs than would have been the case anyway, so there was liability in respect of the additional cost. The same sort of factual division can apply where there are consecutive tortfeasors (Baker v. Willoughby [1970] AC 467 at 493, 496) or where different considerations apply to different injuries: Commonwealth v. McLean (1996) 41 NSWLR 389 at 398, or where it is necessary to award damages only for that part of the plaintiff's loss which occurred within the limitation period: Adams v. Ascot Iron Foundary Pty Ltd (1968) 89 WN (Pt. 2) (NSW) 37; Mount Isa Mines Ltd v. Peachey (supra). These are really cases of factual apportionment, where the loss was not all caused by the defendant's wrong. But where there are multiple causes for a particular loss, the general rule is that the plaintiff is entitled to recover as damages the full amount of the loss from any defendant whose conduct was a cause: Fleming “The Law of Torts” (9th ed., 1998), p.229.

The position is the same if the cause of action is for breach of contract; it is not necessary for the breach to be the exclusive cause of the loss: Cheshire & Fifoot “Law of Contract” (7th Aust. ed., 1997) p.796; Beale “Remedies for Breach of Contract” (Sweet & Maxwell, 1980) p.178:

The subsequent discussion about the position where the plaintiff contributed to his own loss assumed that the English contribution statute applied to claims for damages for breach of contract, at least in the case where there was parallel liability in tort. This was contrary to Astley.

One of the authorities cited in Cheshire and Fifoot is the decision of the New South Wales Court of Appeal in Simonius Vischer & Co v. Holt and Thompson [1979] 2 NSWLR 322. Samuels JA said at p.346:

His Honour went on to cite authority.

In Alexander v. Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310, Glass JA said the same thing at p.315, as did McHugh JA at p.357, citing with approval on the following page the passage I have just quoted from Simonius Vischer.

The only Queensland decision of which I am aware where damages have been apportioned on the basis of causation is the decision of the Court of Appeal in Lamotta v. Varitimos (Appeal 60/92, Queensland Court of Appeal, 28 October 1992, unreported), where the defendant was a solicitor acting for the plaintiff's who were the owners of a building in which there were a number of tenants. The plaintiff's wanted to obtain vacant possession of the building in order to sell it, and faced difficulty with one particular tenant as a result of some negligence on the part of the defendant. There were some other difficulties as well, but this was the most important obstacle to giving vacant possession, and because of this and the other difficulties, the plaintiff's renegotiated the sale of the building so that it was sold at a lower price but without vacant possession. The Court of Appeal overturned the finding that the whole of the price reduction was recoverable as damages for the negligence. Macrossan CJ, with whom McPherson JA agreed, did not discuss authorities, and expressed his reasons on a basis which may be consistent with the damages being apportioned in fact, that is, by concluding that part of the price reduction was attributable to the particular difficulty caused by the negligence of the solicitors, and the balance attributable to other problems not so caused.

Pincus JA, however, expressly put his reasons on the basis of the defendant's negligence not being the sole cause of the price reduction, so that there had to be an apportionment to reflect the extent to which the particular problem for which the defendant was liable was a cause of the loss. He referred to two authorities: one was Government of Ceylon v. Chandris [1965] 3 All ER 48 at 56, but that, in my opinion, was really a case of apportionment on the basis that there were two causes of separate damage, that is, apportionment in fact. There had been some damage caused by the plaintiff's breach of contract, and some damage caused by the defendant's. This, in my opinion, is distinct from a situation where there is one loss which has more than one cause.

The other case referred to was the decision of the New Zealand Court of Appeal in Day v. Mead [1987] 2 NZLR 442. In that case the court was dealing with compensation in equity for breach of fiduciary duty, and this was reduced by analogy with contributory negligence. Various Canadian cases, including Dorion (infra) were referred to. It appears from p.462 that ultimately the appropriateness of apportioning in these circumstances was conceded by counsel. Whether compensation in equity is apportionable on the basis of causation in my opinion is a different question from whether damages for breach of contract are apportionable on that basis, and in any case the general approach of the court in Day seems to me to be inconsistent with the approach adopted by the High Court in Astley. His Honour made no reference to the principles and authorities to which I have referred, and in my respectful opinion his decision appears to have been given per incuriam.

In my opinion, there is no basis upon which the defendant could recover as damages for breach of an implied term part of the amount of its liability to the plaintiff; either it recovers in full or not at all.

Will A Term Be Implied In Favour Of The Defendant?

There are however, in my opinion, more substantial obstacles to the success of the argument sought to be advanced in the proposed amendment to the defence. The first is that the implied term sought to be relied on is not, in my opinion, to be implied in a contract of employment. This would involve an extension of the principle that it is an implied term that the employee will not negligently cause damage to the employer (see, for example, Digby, v. General Accident [1943] AC 121) or negligently cause injury to someone else: Lister v. Romford Ice Co [1957] AC 555 which continues to apply in Queensland: A.R. Griffiths & Sons Pty, Ltd v. Richards (1996) 24 MVR 296, special leave to appeal refused: 71 ALJR 651. These are applications of a broad implied obligation to carry out one's duties with reasonable care and skill: Astley at p.414, para. 48. That principle has arisen and been applied in the context of duty not to cause harm to the employee by harming someone other than the employee, and counsel was not able to refer me to a case where the principle had been extended to an implied obligation on the part of the employee to avoid causing economic loss to the employer by causing injury to himself. In my opinion, it does not necessarily follow from the decision in Lister and the majority decision in A.R. Griffiths that there is such an implied term, and in my opinion it should not be implied. The dissenting judgment of Fitzgerald P in A.R. Griffiths at p.298 provides, I think, good reason why the approach in Lister ought not to be extended. Such a conclusion would be contrary to the result in Astley, and contrary to the conclusion at p.421 that contributory negligence is not, at common law, a defence to an action for breach of contract.

In any case an attempt to imply such a term would not meet the conventional tests of implication. These are the requirements specified by the Privy Council in B.P. Refinery (Western Port) Pty Ltd v. Hastings Shire Council (1977) 52 ALJR 20 at 26:

Apart from the fact that it seems to me considerably less than obvious, in my opinion it is unnecessary to give business efficacy to the contract^[6], and indeed is neither reasonable nor equitable; it would directly frustrate the objective of the contribution statute, which was to make contributory negligence a matter which went to apportionment rather than standing as a complete defence to the injured employee's claims. The significance of this policy was discussed by the High Court in Astley at pp.441-2.; if the contract of employment contains implied terms such as that sought to be relied on, in my opinion its effect would be to entitle a defendant employer to a complete indemnity whenever the plaintiff had been guilty of a failure to take reasonable care for his own safety, that is contributory negligence, so as to reinstate contributory negligence as a complete defence. In my opinion, the law does not imply such a term into a contract of employment.

In Simonius Vischer (supra) at pp.347-8, Samuels JA considered and rejected an argument that there should be implied into a contract of retainer of auditors that the firm retaining them would take all reasonable care to avoid suffering loss due to the acts or omissions of their employees, and would inform the auditors of all or any breaches of authority of the employees of which they were aware. This provides some analogy with the present case, and is, in my opinion, persuasive against the argument sought to be advanced on behalf of the defendant.

Counsel for the defendant relied on a passage in the judgment of La Forest JA in Dorion v. Carsse Populaire d'Inkerman Ltee (1985) 17 DLR 4th 660 at 680-84. The court in Astley was aware of that decision: see footnotes 89,106. Presumably their Honours were not persuaded by it; it adopts the standard Canadian approach, which is contrary to that upheld in Astley. It may be that his Honour's analysis^[7] was influenced by the circumstance that, apparently, according to French law liability is apportioned on the basis of causation: International Encyclopedia of Comparative Law, vol. 7, chapter 16, s.97, cited in Beale op.sit., p.240, note 42. Whether or not that is the case, in my opinion, it does not reflect the law in Australia.

I have been referred in argument in another matter, raising essentially the same point to the decision of Ashe J in Kashemije Stud Pty Ltd v. Hawkes [1978] 1 NSWLR 143. In that case an employee of a company was killed in a motor vehicle accident in the course of his employment, because of his own negligence. Subsequently the employee's executor, on behalf of his four children, applied for workers' compensation, and payment was made in accordance with the New South Wales Workers' Compensation Act (1926). The workers' compensation insurer then brought proceedings against the executor to recover this amount, on the basis of damages for breach of an implied term in the contract of employment that the employee would use due care in carrying out the contract. His Honour held that such a term would be implied on the basis of Lister v. Romford Ice (supra) and that there had been a breach of it because of the driving which led to the death of the employee, but held that the amount sought was not recoverable as damages for that breach because of a particular provision of the Workers' Compensation Act. His Honour however does appear to have treated the claim by the executor for workers' compensation as being made in effect by the deceased, although it was made for the benefit of the dependants and there is authority that this is a separate right from the right of the employee under the Act, so that but for the effect of the statute it seems he would have allowed recovery.

That was a case where the effect of the employee's negligence was to expose the employer to a liability to someone other than the employee, namely the employee's dependants, although under the Act the employee's executor could pursue that claim on their behalf. His Honour did not there avert to the question of whether there was a distinction between the duty to take care not to harm someone else, relevantly the employer, and a duty not to harm one's self. It was submitted on behalfof the defendant that Lister v. Romford Ice did not draw this distinction, but in Lister and in most of the cases where it has been applied the factual basis for such a distinction has been present.

In my opinion, there is an important difference between a contractual duty to take reasonable care in carrying out the employment so as not to cause harm to another, including relevantly the employer, and a duty to take reasonable care to avoid harming one's self. There is some consideration of the nature of the latter duty in Astley at p.408 which, it seems to me, indicates that the duty is not one which is owed to another, although the point is made that something which amounts to contributory negligence may also amount to a breach of a duty owed to another, such as failing to keep a proper lookout while driving a motor vehicle. I think that the implied term referred to in Lister is based on an obligation not to cause harm to another, including in particular the employer, but does not extend to an obligation not to cause harm to the employee himself. I think that this is an important distinction. In my opinion, the implied term established in Lister should not be extended to a promise by the employee to take care not to harm himself.

A second more substantial obstacle to the success of the argument is that in my opinion there is a difficulty in showing that the defendant's loss was caused by the breach of any such implied term. Assume there is an implied term in the contract to take reasonable care not to injure himself. The defendant is not liable to the plaintiff for damages because of the plaintiff's breach of that implied term; the defendant is liable because of its breach of its obligation to establish and maintain a safe system of work. In Lister the employer was liable vicariously for the negligence of the employee from whom the indemnity was sought; that is, the defendant's liability was caused by the negligence of the employee. Indeed, the same applied in Kashemije Stud (supra); the employer became liable to pay workers' compensation to the employee's dependants, not because of anything that it did or omitted to do, but because the employee negligently killed himself in the course of his employment. But in the present case the defendant's liability to the plaintiff was not caused by the plaintiff's failure to take care; the defendant's liability was caused by its failure to establish and maintain a safe system of work. That breach was productive of loss because of the plaintiff's careless act in climbing on the bull bar, but the defendant is not liable to the plaintiff because he was careless; it is liable to the plaintiff because it failed properly to organise the system of work for fitting the boom to the truck.

In my opinion, an employer could only recover on the basis of breach of the term implied in Lister when the employer's loss is suffered because of the failure to take care by the employee, and it does not extend to the situation where the employer is liable because of its own failure to take reasonable care. The employee's breach may be a cause sine qua non of the employer's loss in the present case, but it was not a cause in the legal sense: see March v. E & M H Stramare Pty Ltd (1991) 171 CLR 506 where that test was rejected as a test of causation in tort. The case is cited in relation to the test of causation in contract law texts, and there is no reason why the test of causation (as distinct from the test of remoteness) should be different in tort and in contract.

It follows that in my opinion the propositions sought to be relied on in the proposed amendments to the defence in Exhibit 24 are wrong in law, and accordingly it is appropriate that I refuse leave to amend in terms of that Exhibit.

Similar arguments were advanced when I delivered judgment in Wylie v ANI Corporation Ltd (supra) and were then rejected by me for reasons I gave ex tempore. On this occasion I took the opportunity to consider the matter and refer to various authorities cited earlier, but my conclusion remains the same.

It follows that in my opinion the plaintiff is entitled to judgment not reduced because of any contributory negligence. However, in case I am in error about this, I will assess contributory negligence.

Contributory Negligence

With regard to contributory negligence, the question of whether an employee such as the plaintiff is guilty of contributory negligence depends on whether he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310. As was pointed out there, his conduct must be judged in the context of the finding that the employer was in breach of his obligation to ensure his health and safety, by exposing him to unnecessary risks. The question is whether in such circumstances the conduct of the work amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage (ibid). Some emphasis needs to be placed on the word “mere”, because inadvertence inattention or misjudgment and contributory negligence are not mutually exclusive categories. Inadvertence inattention or misjudgment can amount to contributory negligence: the question of whether it does so depends on the test posed by Windeyer J in Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37. As explained by the majority in McLean v Tedman (1984) 155 CLR 306 at 315, some temporary inadvertence, some inattention, or some taking of a risk will be excusable if in the circumstances it is not incompatible with the conduct of a prudent and reasonable man. The issue is ultimately one of fact. The question is whether the plaintiff acted as a reasonable and prudent man in the circumstances in which he was injured: Alexandrow v Tully Cooperative Sugar Milling Association Ltd (Appeal 65/88, Full Court of Queensland, 5.6.89, unreported) per Ryan J. p.7, Connolly J. agreeing. In the same judgment His Honour rejected the proposition that a person cannot be guilty of contributory negligence if he shows lack of reasonable care for his own safety in carrying out a dangerous operation as part of his employer's business.

In the present case the plaintiff's action was, I think, done on the spur of the moment. I am not satisfied that he gave consideration to the use of the platform and decided that that was not practicable. The plaintiff obviously thought the quickest way to provide assistance was by climbing on the bull bar, but such a position is obviously insecure and he admitted that he knew this: p.84. I do not think that a person taking reasonable care for his own safety would climb on the bull bar in this way, even when placed in the circumstances the plaintiff was in at the time, and being as anxious as the plaintiff was to be helpful. I think there was contributory negligence on the part of the plaintiff, and indeed that his action was obviously risky. He did not need to be warned about the dangers involved. It was not a case where the plaintiff might have thought he was required to do this in order to do his work. In my opinion the plaintiff was guilty of contributory negligence. With regard to apportionment, it was the plaintiff who chose to act as he did, and he was the person immediately responsible for the adoption of this dangerous position. There was no reason for the defendant to anticipate this specific conduct. The defendant is liable only because it failed to organise the work differently so as to remove the temptation for someone like the plaintiff to get involved in an unplanned way. On the other hand, it is recognised that the duty imposed on an employer is a heavy one, the plaintiff was trying to further the defendant's interests^[8], and the plaintiff's actions did not endanger anyone except himself. On the whole I would apportion ⅓ responsibility to the plaintiff and ⅔ to the defendant.

Quantum

After the accident the plaintiff was taken to the Maryborough Hospital where no fracture or dislocation was found, although there was tenderness over part of the left wrist with some limitation of movement. On the first day he was given pain killers, but the following day a below elbow cast was applied: Exhibit 2.

The plaintiff felt immediately after his fall that he had injured his back; he said he felt excruciating pain in the thoracic area: p.50. He lay on the ground for 5 or 10 minutes and then he got up and went back and tried to do his job again, although he still had some difficulty breathing and he found that as he started to do his job that he had difficulty holding the tools. At lunch time he went up to the hospital: p.51. At that stage it still hurt to breathe, or if he coughed, and he could not bend his wrist.

The plaintiff was off work for some time. After two weeks he saw his general practitioner, since his back and his wrist were in the same condition: p.51. After four weeks of work he was given a release to return to light duties, but then dismissed by the defendant: p.53. He was able to organise another job, but felt that he was unable to start, and saw a doctor again who had further x-rays done when a bone chip was identified: p.61. As a result of locating this, the plaintiff was referred for surgery to Dr. Blue.

Dr. Blue examined him on 12 October 1996 (Exhibit 11) and found acute tenderness in the left wrist with substantial restriction of movement. He proposed further investigations which confirmed a flake fracture of the triquetrum: Exhibit 12. As a result on 13 November 1996 he operated to remove the ununited fracture: Exhibit 13. This substantially improved the state of the left wrist, although it was in plaster for a month or so after the operation: p.62.

The plaintiff was examined again by Dr. Blue on 18 January 1997 for the purposes of a report to the Workers' Compensation Board: Exhibit 14. At that stage the plaintiff was complaining of no problems in the left wrist, and displayed a normal range of movement. There was tenderness over the T6/7 segments, but there was a normal range of spine movement and Dr. Blue noted that x-rays taken of the spine in November 1996 were normal. He thought that the plaintiff had at that stage recovered from any back injury and was fit to return to work as a fitter and turner. The plaintiff however was complaining about continuing back pain (p.62) and saw Dr. Pentis on 26 May 1997 for the purposes of a report to his solicitors: Exhibit 3. The plaintiff was taking Neurofen at this time. Dr. Pentis found tenderness in the upper thoracic region at the T5/T6 area, but with a reasonable range of movement. The CT scan showed a fracture of the spinus process of T1 which Dr. Pentis thought could have occurred in this accident, but he was inclined to attribute the continuing pain to soft tissue injury. He thought the plaintiff would have some difficulties with lifting, overhead work and repetitive bending, and should be confined to lighter manual forms of work. He assessed the incapacity at 10% loss of the efficient function of the spine as a whole, and attributed a 3% loss of function of the left arm to the incapacity in structures associated with the injury to the left wrist.

On 7 October 1997, the plaintiff underwent an MRI examination of the thoracic spine at the Princess Alexander Hospital: Exhibit 8. Some unusual features were found in the region of T5 and T6. This was undertaken for Dr. Weidmann, but I do not have a report from that doctor.

The plaintiff was seen on 5 December 1997 by Dr. Watson who specialises in rehabilitation medicine, for the purposes of a report to his solicitors: Exhibit 4. At that stage the plaintiff had continuing constant mid dorsal pain which was acutely accentuated by coughing, sneezing, jarring insult to the spine or sudden movement of the torso. The plaintiff was still taking pain killers, and was unable to work. Dr. Watson regarded the MRI as showing a central disc herniation through the superior end plate of the body of T6 and said that this was consistent with damage occurring in the accident in question. He thought the plaintiff was genuinely in pain and that this was likely to continue with little improvement, and that the plaintiff was unemployable.

Dr. Blue thought there was no permanent disability arising from the injury to the left wrist: p.19. Dr. Blue expressed the firm view that the protrusion at T6 was something which dated from the plaintiff's adolescence and said that it did not carry any pathology or loss of function: p.20. The characteristic of this condition was that the protrusion was straight up or straight down, rather than a backward protrusion which can cause serious consequences in later life: p.23. Dr. Blue would rule out this protrusion as the cause of pain: p.24.

On 20 February 1998, the plaintiff was examined for the purposes of a report by Dr. Winstanley, an orthopaedic surgeon, at the request of the solicitors for the defendant: Exhibit 15. The plaintiff was still complaining of significant continuous pain in the thoracic spine, aggravated by sitting or standing for more than half an hour, or by various physical activities. Dr. Winstanley recognised that there was a problem with the disc at the T5/T6 level, but thought that this was an indication of an underlying pre-existing problem within the disc which would have produced equivalent symptoms as a result of the carrying out of heavy work anyway within three to five years. Dr. Winstanley conceded that this estimate was really just an educated guess on his part based on his experience: p. 116. He did not think that the fall would have been sufficient to cause a central disc protrusion without some pre-existing weakness.

Dr. Pentis, under cross-examination, gave similar evidence, in that he thought the disc protrusion could have been due to degeneration or due to an acute injury: p.29. However, if it was associated with injury, it was because of an inherent weakness which had been aggravated by the injury (p.30) with the protrusion following the track of the area of weakness: p.31.

Dr. Pentis said that the range of back movement was not inconsistent with the presence of a soft tissue injury in the absence of a spasm: p.28. Dr. Pentis said that an anterior herniation tends to produce less pain than a posterior herniation, and to be associated with no specific signs: p.31. That would be consistent with the plaintiff's presentation, in that none of the doctors have noted other specific signs which could be consequent on disc problems in the back.

Dr. Penis had not seen a copy of the MPJ report, Exhibit 8. Part of it was read to him over the telephone as he was giving his evidence, but he then referred to “herniation anteriorly” as being possibly due to degeneration or acute injury. He also spoke at p.31 of it going “anteriorly” as distinct from posteriorly, that is backways. But Exhibit 8 does not speak of an anterior herniation. It speaks of herniation through the “superior end plate of the body of T6”. A superior herniation is one that goes up, and distinct from an anterior herniation which is one which goes to the front. I think that Dr. Pentis who did not have Exhibit 8 in front of him may have misunderstood its effect. For that reason I prefer the evidence of Dr. Blue and Dr. Winstanley that the herniation of T6 observed in Exhibit 8 is irrelevant to the plaintiff's present condition.

Dr. Winstanley said the plaintiff's overall disability in the spine was 5-6% loss of bodily function (p.113), but he would only attribute part of that, that is 2% to the relevant accident: p.114. Dr. Winstanley thought he could do work other than persistent heavy lifting: p. 114. Dr. Winstanley was not as positive as Dr. Blue about excluding trauma as a cause of the protrusion, but he thought it was very unlikely: p.115. Dr. Winstanley said that pain was not, in his experience, directly correlated with radiological findings in the spine: p.115.

The plaintiff was seen by Dr. Vardy, an osteopathic physician, for the purpose of examination and treatment for three days in November 1998: Exhibit 6. Dr. Vardy recorded complaints of constant pain in the mid-dorsal region accentuated by any physical activity or prolonged standing. There was also complaints of pain in the arms, pins and needles sensation in the hands with difficulty in picking up objects, and headaches. Dr. Vardy found tenderness on palpation over a wide range of the upper spine, and extensive muscle tenderness and contracture. He thought the pain was genuine and quite restricting to the plaintiff at the time of his report. He was not in a position to of for an opinion as to the prospects of any improvement as a result of treatment. Nothing further was offered during oral evidence at the trial.

It does not necessarily follow, from my rejection of the theory that the protrusion was caused in this accident that there is nothing wrong with the plaintiff; the position may simply be that his condition is not one the existence of which can be demonstrated by x-ray and similar examination of the spine. Dr. Watson was emphatic that the plaintiff's pain and handicap were genuine: Exhibit 4. Dr. Pentis also thought that there was genuine pain, which was likely to continue in the long term: Exhibit 3. Dr. Winstanley appeared to regard the plaintiff as having real problems with his spine, although he did not regard the central disc protrusion as significant: Exhibit 15. The plaintiff was seen by Dr. Chalk, a psychiatrist, for the purpose of assessment and report on 25 August 1998: Exhibit 10. On that occasion the plaintiff showed considerable pain behaviour, and Dr. Chalk appears to have regarded his condition as genuine. Dr. Vardy also regarded the plaintiff as someone who was suffering genuine pain: Exhibit 6. The only doctor who appears to doubt any continuing pain on the part of the plaintiff is Dr. Blue: Exhibit 14. I think that the majority opinion of the doctors, who do after all see a lot of people with real pain and ought to be able to recognise a patient who is suffering pain when they examine one, is of some significance, unless there is good reason to think that the plaintiff may have been fabricating complaints of symptoms. The fact that the plaintiff suffers a great deal of pain in his back was confirmed by the young woman who has been a close friend for about 2 years, although she does not live with him: p.108. She said she visited three or four days a week, and did various things to help out: p.109. I acknowledge that she is not really independent, but I think her evidence deserves some weight.

In the present case there are some parts of the plaintiff's evidence that I am not prepared to accept, particularly concerning the work platform, so I have considered carefully whether I am justified in accepting his evidence of continuing severe symptoms of the back. In all the circumstances however I am prepared to accept those parts of his evidence in which he complains of pain in the back following this incident. I am prepared on the whole of the evidence to find that he does have genuine and persisting back pain since the fall, and that it is a result of this fall.

A more difficult question is to what extent he is as a result worse off than he otherwise would have been. Dr. Winstanley would have him in much the same condition anyway in three to five years from February 1998 as a result of pre-existing weakness in the spine: Exhibit 15. Dr. Pentis also appeared to accept the proposition that continuing problems of this nature arise in spines which have some pre-existing weakness. He did not however, go as far as Dr. Winstanley in seeking to predict the plaintiff's prospects in the absence of this injury. The plaintiff had had some back problems prior to this accident: p.86. On the whole, I am not prepared to accept Dr. Winstanley's quantification of this risk, but I think the risk was real and should be allowed for.

Part of the difficulty in knowing what might have happened to a plaintiff had the relevant accident not occurred is in knowing whether anything of equivalent severity might have occurred on some other occasion. The plaintiff had also been involved in a motor cycle accident in early 1998 which jarred his back: p.88. He maintained however that the increase in pain associated with this accident was only temporary, and denied that he told Dr. Chalk that this had resulted in a significant deterioration of his back, as noted in Exhibit 10: p.88. I think that this involves a significant element of interpretation on the part of Dr. Chalk: see p.102. But even if this did not cause any lasting increase in the plaintiff's symptoms, it remains an example of the sort of thing which could well have caused problems to arise anyway if the plaintiff had some inherent weakness in his back.

The plaintiff was born on 26 December 1966 (p.9) and so is now 32 years of age. He is single, though he has a girlfriend as mentioned earlier. He said that after the operation from Dr. Blue the wrist had been basically okay (p.62) although he had not really extended it because he has not been working since the accident because of his continuing back problems. He says that he has pain all the time (p.62), and that it is made worse if he does a wide range of things for any length of time: p.63. He can run for only about 100 yards, ride his motorcycle for half to one hour, and is in pain if he has to sit for an extended period of time. He says he could not work as a fitter at the present time (p.67) and that there are a number of things around the house that he cannot do: p.65. The plaintiff has also had some depression as a consequence of his continuing pain (Ex. 10), although in this area there are good prospects of improvement. I accept that he is suffering pain in his back as a result of this fall, and that it is producing these symptoms and difficulties.

The real difficulty is knowing to what extent and when he would or might have been like this anyway because of some weakness in his back, and to what extent he may improve as a result of further treatment from Dr. Vardy, or elsewhere. There is one area where I can be reasonably confident of significant improvement; Dr. Chalk was of the view that litigation was having a significant impact on the plaintiff's psychiatric condition, and that there was prospects of improvement of the order of 50% once the litigation was over (p. 102-3) and that this would also impact on the plaintiff's capacity to deal with his pain. He said that people in this condition do commonly return to part time work at least: p. 103. I think therefore that there are good prospects of either further physical treatment or the passing of litigation producing a significant improvement in the plaintiff's condition for the future. However this condition will not go away completely. I think it probable that he will continue to have back pain, worse if he tries to do anything particularly strenuous, although not as limiting as it is at the present time. I doubt if it is helpful to try to express this in terms of a percentage. I do not think that there is any continuing significant pain and suffering and loss of amenities as a consequence of the problem with the wrist, but that was a significant problem in the period prior to the operation by Dr. Blue. In all the circumstances I will assess damages for pain and suffering and loss of amenity, making some allowance for the prospect of improvement and some allowance for the possibility that the plaintiff would have had back problems anyway at some stage, in the sum of $30,000. I apportion $12,500 to past loss, which will carry interest at the rate of 2% per annum for 2 years and 11 months.

The plaintiff's pre-accident employment history suggests an earning capacity of the order of $525 net per week, and both counsel argued on the basis of economic loss at the date of the accident of $527 per week: Exhibit 7. It appears that even if the plaintiff had not been injured he would have lost this job at about the time he did, because of lack of work: p.84,164-6. In the past, however, the plaintiff has been able to obtain other employment fairly readily, and indeed after he was sacked on this occasion he arranged for employment elsewhere (p.53) but because of his continuing problems with his wrist he did not take up that job: p.61. I think it reasonable to allow economic loss at the rate of $527 per week since the date of the accident, subject to some discounting to allow for the possibility of some periods of unemployment and other vicissitudes of life had this accident not happened.On that basis I will assess past economic loss at $75,000. The plaintiff received net workers' compensation payments in the sum of $9,223, and this must be deducted before calculating interest which should be allowed on $65,777 at 4% for 2 years 11 months.

With regard to the future, I accept that once the litigation is behind him the plaintiff will improve his capacity to cope with his pain, and that there are reasonable prospects of his returning to some employment, although perhaps not full time and certainly not to do heavy work. That would make it more difficult to work as a fitter and turner, but perhaps not impossible. He has in the past had a fairly good employment history, working mainly as a fitter: pp.10-12. He is still fairly young, and has some time to adapt his life. I think that it would be quite unrealistic to assess damages on the basis that he will never work again, but obviously there will be economic loss in the future, particularly in the near future, and probably some economic loss continuing indefinitely.

The picture is also complicated by the possibility, which becomes of greater significance as more time passes, of the plaintiff suffering back problems anyway had this accident not happened. I have already referred to this prospect, and it impacts particularly on future economic loss. I think it likely that sooner or later the plaintiff would have been unable to do heavy work anyway because of back problems had this accident not happened, so that as time passes the chances increase of the plaintiff not being any worse off than he would have been anyway. I do not think that it is realistic to attempt any calculation, but assuming a working life of 30 years and a working capacity of $527 net per week, complete destruction of the working capacity would produce a loss which after discounting for contingencies and the prospect of some periods of unemployment anyway, would be assessed at about $350,000. That figure would have to be reduced because of the prospect of some problems arising with the back anyway, and for the prospect of the plaintiff's earning income anyway once he improves his mental state and becomes better at pain management. I think it reasonable however to assume that the plaintiff will not be likely to get back to an equivalent earning rate, and will not earn anything of significance in the immediate future. On the whole I think it reasonable to allow a lump sum for future economic loss of $100,000.

There are special damages in the form of monies paid by WorkCover totalling $4,632.06, and a Fox v. Wood factor of $2,622.10: Exhibit 9. Apart from this there was evidence of the plaintiff's having taken various medication (Exhibit 18) but there is no evidence about the cost of this. I think it is reasonable to assume that he had some cost, so I should allow something for this, but it will have to be a moderate amount. I will allow the sum of $2,000 to cover past and future, including interest. There is a claim for gratuitous assistance at the rate of 6 hours per week since April 1997; the plaintiff said that there were various things being done for him by his girlfriend since then (p.65) which she confirmed: p.109. The figure of $10 per hour is not contentious as a rate. I think that the estimate from Ms. Ree was that she spent about 3 hours per day three or four days per week doing this work (p.110), but I suspect that she does quite a bit for him which he could do himself, so that this reflects an overestimate of his need for assistance. Doing the best I can I will assess that at 4 hours per week for a period of 2¼ years, and allow (with some rounding) $4,700.

For the future, I think in the light of Dr. Chalk's evidence, he will probably be better able to cope once the litigation is behind him, and that I suspect will manifest itself first in an improved ability to care for himself at home. No doubt he will still require some assistance in the future, but this is likely to be at a much reduced rate in the fairly near future. I suspect however that there will always be some occasional heavy tasks around the house for which he will need help, although I note that he remains capable of doing brief isolated heavy tasks even at the moment. He said that on one occasion he had moved some bags of concrete a short distance, although he suffered increased pain afterwards: p.64. In all the circumstances, I award $7,500 for future assistance. I will allow interest on past assistance at 2% per annum for 2¼ years.

Summary

Leave was given to increase the amount claimed to $250,000: p.2. I will therefore give judgment that the defendant pay the plaintiff the sum of $218,601 which includes $8,624 by way of interest. I will hear submissions in relation to the question of costs, but unless some other order is appropriate there will be an order that the defendant pay the plaintiff's costs of and incidental to the action to be assessed. The summons filed on 14 April 1999 is spent; for practical purposes the return of that summons was occupied by argument on the defendant's application for leave to amend which is refused. I order the defendant to pay the plaintiff's costs of and incidental to that summons and the hearing on 16 April 1999 to be assessed.